FEDERAL COURT OF AUSTRALIA

SZVVR v Minister for Immigration and Border Protection [2016] FCA 1364

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the primary Judge on 12 May 2016 be set aside.

3.    The decision of the Refugee Review Tribunal of 11 November 2014 be set aside.

4.    There be an order in the nature of mandamus requiring the Administrative Appeals Tribunal to determine the appellants’ application for review according to law.

5.    The first respondent pay the appellants’ costs of the appeal and their application to the Federal Circuit Court of Australia, such costs to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1    This is an appeal from the Federal Circuit Court decision in SZVVR & Ors v Minister for Immigration & Anor [2016] FCCA 1137 dated 12 May 2016. The primary Judge dismissed an application for review of the decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal), where the Tribunal affirmed the decision of a delegate of the Minister not to grant the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth).

2    The appeal before the Court has been brought by a family, where the first appellant is the mother of the third and fourth appellant, and the second appellant is the husband of the first appellant. The second to fourth appellants rely on the first appellant’s application as her family members.

Background

3    The appellants are citizens of China. They arrived in Australia on 13 June 2009, each on a subclass UR163 visa.

4    This first appellant’s visa expired on 28 October 2013. Between her arrival in 2009 and the visa expiry date in 2013, the appellant left Australia a number of times to travel back to China.

5    The first appellant was a primary school teacher in China. She claimed that while she was in China she disliked the “Young Pioneers” programme which was conducted in primary schools in China, solely for the purpose of instilling concepts of Communism into the minds of those children so that they would be loyal to Communism from their childhood. She claimed further that she founded a group “The Society of Primary Education” (the Society) with other like-minded teachers, for the purpose of sharing or exchanging or discussing their opinions on a regular basis. The first appellant claimed that they expected the group meeting could relieve their mental pressures.

6    The first appellant claimed that when she attended a party in early 2013 while on a return visit to China she was informed by a reliable friend that the Society was regarded as “anti-Communist” by the PRC authorities, and that key members of the Society had been on a “black list” of the Public Security Bureau (the PBS). Although her friend did not know of the first appellant’s role in the Society, the friend knew of the first appellant’s relationship with the key members of the Society, and advised her to leave China as soon as possible (which she did).

7    The first appellant claimed further that the other members of the Society were subsequently arrested by the PBS, and implicated her in their confessions. As a result the first appellant is on the “black list” of the PBS, her father was interrogated and mistreated, and other relatives had been subjected to investigation by the PBS.

8    The first appellant applied for a protection visa on 21 June 2013, on the basis that she feared harm or persecution in China because of her involvement the Society, as well as her dislike of the PRC authorities and their enforcement of Communist ideologies or education on primary school children.

9    The delegate of the Minister refused the protection visa applications of the appellants.

The Tribunal Decision

10    The appellants sought review of the decision of the Minister’s delegate and appeared before the Tribunal on 16 October 2014 and 4 November 2014.

11    After setting out, in some detail, the arguments presented by the first appellant to the Tribunal, the Tribunal said:

48.    I am unable to be satisfied as to the first named applicant’s (the applicant) claim to have a well founded fear of persecution if she returns to China based on her claim that she will be persecuted because of her political opinion.

49.    I am not satisfied as to the applicant’s credibility in relation to a number of claims and I am not satisfied as to the credibility of a number of her claims.

50.    I am not satisfied that the Society of Primary Education that the applicant claims to have established does, in fact, exist …

12    Further, and in particular, the Tribunal found:

    it was not satisfied that the first appellant formed the Society as she claimed;

    the first appellant’s explanation about the secrecy of the Society because of the teacher membership does not in all the circumstances seem credible, in circumstances where a letter signed by her and other teachers suggesting that the Young Pioneers movement be removed from Chinese primary schools would have identified those teachers to the authorities;

    there were no independent materials that would show that the Society existed;

    the first appellant gave evidence of her trips back to China and her claimed activities and involvement with the Society on those trips, however the Tribunal did not accept that she was engaged in activities which could be seen to be as challenging to the existing Chinese education system;

    the Tribunal did not accept that the first appellant was dismissed from her former primary school in China as a result of those activities or that she, family members or friends had been placed under investigation;

    the material upon which the first appellant relied was not persuasive of her claims;

    the Tribunal was not satisfied that the first appellant had altered her travel movements to return to Australia because the Society had become a target of the PSB;

    the Tribunal did not accept that the first appellant was on a “black list” of the PSB and that she would be detained and arrested should she return to China now or in the reasonably foreseeable future.

13    In respect of the material upon which the first appellant relied the Tribunal noted:

54.    … The applicant in responding to questions often spoke about her broader views of the Chinese political system and arrangements in China rather than necessarily focusing on the Chinese education system.

14    The Tribunal also observed:

58.    Having regard to the totality of the evidence and to my findings regarding the credibility of the applicant and the credibility of a number of her claims I do not believe that there is a real chance of persecution of the applicant for her claimed political opinion or political activities should she return to China now or in the reasonably foreseeable future. The applicant is not a refugee.

Federal Circuit Court

15    The appellants applied for review of the Tribunal’s decision in the Federal Circuit Court on 15 December 2014, on the following ground:

1.    The Tribunal failed to give the applicants claims a proper and genuine consideration

Particulars

1.1    The Tribunal made adverse findings concerning the applicants credibility absent any credible or cogent basis for such an adverse finding and in doing so failed to exercise the jurisdiction of the Tribunal.

16    The ground of review was amended on 23 February 2016, as the appellants obtained representation. The original ground was replaced by the following:

1.    The Tribunal failed to lawfully exercise its jurisdiction by failing to consider and decide the claim that formed the basis of the first applicant’s application, that being that she fundamentally disagreed with the Chinese government policy of politically indoctrinating children in the course of their primary application.

17    The representative for the first appellant claimed that the Tribunal focused on whether the Society actually existed, rather than focusing and coming to a decision on the first appellant’s claim in respect of her political opinion. It was contended that there was no discussion or finding about the first appellant’s alleged political opinion.

18    After summarising the background to the case, including submissions of counsel for the appellants, the primary Judge said:

19.    The Tribunal’s reasons are not to be read with a keen eye for error. The reference to both question 43 and question 48 identifies that the Tribunal differentiated between the existence of a society, and fears relating to the first applicant’s political opinion. After para. 27, the following para. 28 makes that clear, where the Tribunal refers to the applicant “was also asked”.

20.    Of [sic] a fair reading of the Tribunal’s decision, the Tribunal properly identified the first applicant’s claim in relation to a fear of persecution on the basis of her political opinion, and made a finding that was open to it, that the first applicant did not have a well-founded fear of persecution if she returns to China, based on her claim that she will be persecuted because of her political opinion.

21.    That finding was reinforced by what was said by the Tribunal at para. 48, that it did not believe there was a real chance of persecution of the first applicant for her claimed political opinion or political activities should she return to China now or in the reasonably foreseeable future.

22.    I do not accept the contention that there was no finding in relation to the first applicant’s political opinion. Further, I do not accept the submission that the Tribunal’s focus was confined to the existence of the society …

19    Accordingly, his Honour dismissed the application.

Appeal to the Federal Court

20    The appellants appealed the decision of the Federal Circuit Court, and relied on the following grounds:

1.    The Court erred in finding that the second respondent (the Tribunal) had considered and made a finding on the first appellant’s claim that she fundamentally disagreed with the Chinese government policy of politically indoctrinating children in the course of their primary application.

2.    The Court should have found;

(a)    That the first appellant’s claim that she fundamentally disagreed with the Chinese government policy of politically indoctrinating children in the course of their primary application was not lawfully considered by the Tribunal, and;

(b)    That the Tribunal’s failure to consider that claim could have affected its decision.

Submissions of the parties

21    Both the appellants and the Minister were represented at the hearing before me.

22    In summary, the appellants submitted as follows:

    At the time of the Tribunal decision, a person could come within Article 1A(2) of the Refugees Convention if he or she had a well-founded fear of persecution for reason of inter alia “political opinion”.

    The Federal Circuit Court was required to review whether the Tribunal complied with the requirement to consider all claims made by the first appellant, and each “integer” of the appellant’s claims (Htun v Minister for Immigration (2001) 233 FCR 136 at [8], [42]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [60]-[66]).

    The Tribunal was aware of the first appellant’s claim that she “detested” the political indoctrination of children. But there is a difference between the Tribunal being aware of a claim and considering it. “Consideration” involves the directing of an “active intellectual process” to the matter (Tickner v Chapman (1995) 57 FCR 451 at 462).

    In the Tribunal’s decision, there was no discussion or finding in relation to whether the first appellant did hold the political opinion of being opposed to the political indoctrination of children and the existence of the Young Pioneers of China. This political opinion was the basis of, and was central to, the first appellant’s case.

    The Tribunal’s reasons were mostly concerned with the claimed Society of which the first appellant claimed to be a member.

    Despite the finding of the Federal Circuit Court, the Tribunal appears to have overlooked the importance of the philosophical basis of the first appellant’s claims.

    The Tribunal failed to consider an “integer” of the appellants’ claims and the Federal Circuit Court erred in failing to so find.

23    The Minister submitted, in summary:

    It is clear that the Tribunal understood that the first appellant claimed to hold the relevant political opinion, that the Tribunal recorded her evidence to that effect and her claim that it was this opinion which motivated her alleged establishment of the Society.

    The Tribunal found that the first appellant and her claims were not credible.

    The Tribunal’s findings and the generality of the Tribunal’s reasons could be taken to include a rejection of the first appellant’s claim to possess the opinion concerned. This appears to have been the primary Judge’s reading of the Tribunal’s decision.

    Even if the Tribunal made no finding as to the first appellant’s political views there was no jurisdictional error on the part of the Tribunal, in circumstances where all of the first appellant’s claimed fears concerned her alleged activities in the Society (which were rejected by the Tribunal).

Consideration

24    As Counsel for the appellants correctly submitted, in discharging its statutory review function the Tribunal is required to consider the appellants’ claims and their integers (see, for example, SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121 at [51]). As the Full Court of this Court further explained in NABE 144 FCR 1 at [55]:

Where the Tribunal fails to make a finding on “... a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95].

25    The verb “consider” was discussed by the Full Court in Tickner 57 FCR 451. Black CJ observed at 462:

The meaning of “consider” used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary (2nd ed) as “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of”. Consideration of a document such as a representation or a submission … involves an active intellectual process directed at that representation or submission.

26    At 495-496 Kiefel J said:

To “consider” is a word having a definite meaning in the judicial context … It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not be considering the representations, but someone else’s view of them, and the legislation has required him to form his own view upon them.

27    As has been acknowledged elsewhere, the concept of “political opinion” is broadly interpreted. So for example in V v Minister for Immigration and Ethnic Affairs (1999) 92 FCR 355 Wilcox J said at [16]:

… as a matter of law it is enough that a person holds (or is believed to hold) views antithetic to instruments of government and is persecuted for that reason. It is not necessary that the person be a member of a political party or other public organisation or that the person’s opposition to the instruments of government be a matter of public knowledge.

(cf the helpful discussion of relevant principles in Vrachnas J, Bagaric M, Dimopoulos P, Pathinayake A, Migration and Refugee Law – Principles and Practice in Australia (3rd ed, Cambridge University Press, 2012) at pp 201 et seq.)

28    The Minister does not dispute that the views of the first appellant concerning the alleged indoctrination programs in primary schools in the PRC constituted a “political opinion” within the meaning of the Refugee Convention for the purposes of her protection claim.

29    As I noted earlier in this judgment, the Tribunal found, overall, that the appellants’ claim was not substantiated, and that the first appellant was not credible. Counsel for the Minister submitted that the Tribunal’s rejection of the first appellant’s claims concerning the Society, and the generality of its reasons, could be taken to include a rejection of the first appellant’s claims to possess the political opinion concerned.

30    I have difficulties with this submission for the following reasons.

31    First, I am satisfied that the existence or otherwise of the first appellant holding a political opinion in relation to indoctrination of primary school children in China was an integer of the appellants’ claim.

32    The concept of “integer” of a claim is one familiar to judicial review, and refers to an integral or essential aspect of a claim. In Applicant M31 of 2002 v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCA 533 Weinberg J set out relevant principles at [20]-[22]:

20.    It has long been recognised, in public law, that a constructive failure to exercise jurisdiction can amount to jurisdictional error. In Paul v Minister for Immigration and Multicultural Affairs, Allsop J discussed the concept of an “integer” in connection with an alleged failure to deal with all aspects of a claim. His Honour said at [79]:

Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction … they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed. It may be that if the element of the appellant’s claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed because an element or integer of the claim put forward by her would not have been dealt with. In such circumstances it may be that, in a jurisdictional sense, a relevant consideration had not been addressed. However, it is unnecessary to decide this given that the Tribunal did address the elements or integers of her claim.

21.    Several months later, in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, Allsop J clarified the distinction between a failure to consider an element or integer of a claim, and an errant finding of fact. His Honour said at [42]:

The “participation in the Karen community and the political groups” could be said to have been dealt with by the tribunal dealing with the appellant’s activities in Australia. The friendships (of the appellant, as a Karen) with people in organisations such as the KNLA were not. This is not merely one aspect of evidence not being touched. It is not a failure to find a “relevant” fact. The tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 … It is to be distinguished from errant fact finding. … If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with. If the sur place claim is, or is to be seen as, based on more than one foundation – that is, what has been done by way of political activity and also because of friendships made with other Karen people of arguably seriously subversive background, both bases of the claim must be dealt with. The tribunal did not deal with the latter basis of the appellant’s sur place claim based on imputed political opinion. It was not a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error. It was a failure to deal with one part of the claim for asylum on the basis of his imputed political opinion. It is true that when called on at the hearing to articulate orally his fears he did not expressly identify his friendships as distinct from his activities in Australia. However, given the clarity of the expression of this fear in his application for review and the existence of objective material put forward by him to support it, I do not see this basis for the claim as having been abandoned. Conceptually, and in a common sense way, it was quite distinct from his claim based on his activities of the kind referred to earlier.

22.    More recently, in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 a Full Court comprising French, Sackville and Hely JJ, in a joint judgment, said at [46]-[47]:

It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323… at [87]-[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

33    In this case there is nothing in the Tribunal’s reasons to indicate that the Tribunal formed a view one way or another about the existence of the first appellant’s claimed political opinion. Read fairly, while the Tribunal makes general findings about the first appellant’s credibility and her claims, the Tribunal’s reasons related only to the first appellant’s claims concerning the Society. I am unable to identify any consideration by the Tribunal of the existence (or otherwise) of the first appellant’s claimed political views concerning the PRC and the educational policies aimed at primary children.

34    The Tribunal was plainly aware of the first appellant’s claimed political opinion concerning PRC government policies in respect of indoctrination of primary school children. The primary aspect of the first appellant’s claim to the Tribunal was that it was on account of her alleged founding of the Society that she feared persecution. However, while her “detestation” of the PRC authorities and indoctrination programs aimed at primary school children was not the focus of the appellants’ claim, it was an important aspect of it supporting the first appellant’s claims concerning the Society. This is apparent in the first appellant’s answers to questions 43 and 47 in her protection application.

35    The Tribunal may not have expressed a finding on the existence of her political opinion because (a) it accepted that she held such views which was the reason for her allegations of the existence of the Society and it was unnecessary to consider this issue further, or (b) it rejected her claims of holding such opinion and this rejection was demonstrated in the Tribunal’s broad finding that the first appellant was not credible. However, notwithstanding the breadth of the terms in which the Tribunal’s credibility findings were expressed, it is clear that the reasoning of the Tribunal was directed to the claims of the first appellant regarding the foundation and existence of the Society. I am not able to conclude with any certainty if the Tribunal adopted either approach in respect of her political opinion.

36    I am not satisfied that the Tribunal discharged its statutory duty in respect of the appellants’ claims to the extent that, in its findings, the appellants’ claims in relation to the first appellant’s political opinion were subsumed into the Tribunal’s determination of the appellants’ claims concerning the Society. To paraphrase the observations of the Full Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593, it cannot be said that it was unnecessary for the Tribunal to consider the credibility of the first appellant’s political opinion in circumstances where the Tribunal made factual findings in respect of the appellants’ claims concerning the Society. As Counsel for the first appellant submitted, a proper consideration by the Tribunal of the first appellant’s claims in respect of her political opinion may have led to a different result in the Tribunal, in the sense that a finding favourable to the first appellant on this point may have influenced the Tribunal’s consideration of her claims in relation to the Society.

37    In my view the failure of the Tribunal to consider and determine the first appellant’s claimed political opinion constituted a constructive failure to exercise its jurisdiction, and a jurisdictional error.

38    The appeal should be allowed. No reasons have been put to the Court to justify any order other than that costs should follow the event.

Associate:

Dated:    16 November 2016